Merrell v. Witherby

• Decision Date: 15 August 1898
• Citation: 23 So. 994,120 Ala. 418
• Parties: MERRELL v. WITHERBY ET AL.
• Court: Alabama Supreme Court

23 So. 994

120 Ala. 418

MERRELL v. WITHERBY ET AL.

Supreme Court of Alabama

August 15, 1898

Appeal from chancery court, Shelby county; J. R. Dowdell Chancellor.

Bill by Walter E. Merrell, assignee of Green Merrell, against E. T Witherby and others. From a decree for defendants, plaintiff appeals. Reversed.

The bill is filed by Walter E. Merrell,-as the assignee of a note from Green Merrell, given by W. R. Carter to said Green Merrell, for the price in part of lands described in the bill, alleged to have been sold by Green Merrell to him,-to enforce a vendor's lien in favor of the complainant as assignee of said note, against said Carter and the other defendants. Ed. T. Witherby, Homer R. Stoughton and James B Goodwin. Said Green Merrell was made a party defendant, also to the bill.

The bill charges, that on the 11th day of March, 1890, Green Merrell, in consideration of $8,000, sold to W. R. Carter, as the agent of the defendants, Ed. T. Witherby, H. R. Stoughton and J. B. Goodwin,-who will be hereafter for convenience referred to as Witherby & Co.,-the land described in the bill; that at the time of said sale, Witherby & Co. paid for said lands, in cash, the sum of $6,150.25, and for the balance of the purchase money therefor, the said W. R. Carter executed his promissory note for the sum of $1,849.75, of date March 11, 1890,-the date of the sale; that soon after the conveyance by said Green Merrell to said Carter, Carter executed his deed to said lands to Witherby & Co., and that thereafter, specifying the dates and amounts, said Witherby &amp Co. paid on said note to said Green Merrell, sums aggregating $849.75, which sums were credited on said note, leaving a balance of $1,000 with interest due thereon. It further charges,"that the purchase made by W. R. Carter from Green Merrell was made for and at the request of the said Ed. T. Witherby, Homer R. Stoughton and James B. Goodwin, and by and with the agreement between them, that the said W. R. Carter should convey the land to them, the said purchase money being all paid by the said Witherby, Stoughton and Goodwin."

The prayer of the bill was for a sale of the land for the amount due complainant as purchase money, with interest thereon, and if the land should not sell for an amount sufficient to pay the same then for a decree over for the balance due after applying the proceeds of the sale of said land to the indebtedness, and for general relief.

The chancellor, upon pleadings and proofs, decreed a sale of the lands for the payment of the debt ascertained to be due. The land was sold by the register under this decree for the sum of $190, which sum was applied, first, to the costs of the case, and the balance to the debt, leaving a balance of $1,473.80 remaining due and unpaid on the debt, on the 17th of May, 1897.

Thereupon, the complainant petitioned the court of a moneyed judgment against each of the respondents for the said amount remaining due, as was prayed for in the original bill.

To this petition, the respondents filed answers and demurred, setting up the same plea of the statute of frauds that they had each interposed to the original bill, which was, in substance, that the alleged agreement for the purchase of said land, mentioned in the bill, was not in writing, nor was there any note or memorandum thereof, expressing the consideration in writing, subscribed by respondents, or any one of them, thereunto duly authorized in writing, and that said agreement was void under the statute of frauds.

The joint answer of Witherby and Stoughton to the bill substantially admits the foregoing allegations of the bill. They say, that they and J. B. Goodwin "became desirous of purchasing land near the city of Shelby; that they selected the lands of Green Merrill mentioned in said bill of complaint, and that they, the three respondents, Goodwin, Witherby and Stoughton, procured, authorized and instructed respondent, W. R. Carter, to buy the same for them at the price of $8,699.50; that in pursuance of said instructions, said Carter did buy said land from said Merill, agreeing to pay him $5,000 in cash, and giving his promissory notes" for the balance, on which payments were afterwards made by said Witherby & Co. leaving a balance of $1,000 due thereon as stated in the bill.

Goodwin answered, admitting that Carter purchased the land described in the bill from Green Merrell, at the time and on the terms therein stated, but denies that he agreed to be in any way personally liable for the purchase money, or any part thereof. He also admits the payment by himself and associates of the amount in cash, as averred; that Carter gave his own notes for the balance, and that the sum of $1,000 remains due thereon, all as stated in the bill; that said Carter executed his deed to Witherby & Co. to the lands mentioned in the bill, but denies that Carter executed said deed as respondent's agent. He also admits that Carter agreed to transfer the lands he purchased from said Merrell to respondent and associates, but denies that he was to be personally liable for the purchase money.

Carter answered in which he admits all the material allegations of the bill, but states that the cash payment was $5,000 instead of $6,150.25 as averred; that the amount agreed to be paid for the land was $8,699.50, instead of $8,000, as averred, and that instead of one there were two notes executed for $1,849.75 each to said Merrell by him; that he knew nothing as to how much money was paid on the note, nor by whom it was paid, and states that he acted as the agent of Witherby & Co. in making the purchase of the land, and had no further connection with the transaction after he executed his deed to them.

Green Merrell answered, admitting the material allegations of the bill to be true, and stating that Witherby & Co. made the cash payment of $5,000; that Carter gave his two notes for $1,849.50, payable as alleged, instead of one note, and that Witherby for the three partners or joint owners paid to him the first note in full about the time of its maturity, and the amounts alleged in the bill as having been paid by them, and credited on said last note.

Witherby Stoughton, Carter and Green Merrell were examined by complainant. Witherby and Stoughton testified, sustaining...